Indictment with Detention

A criminal procedure in which a prosecutor files charges while the suspect is held in custody, contrasted with indictment without detention.

Indictment with Detention

Overview

Indictment with detention (gusok giso) refers to a prosecutor filing charges with a court while the suspect is physically confined—that is, while a detention warrant has been issued and the suspect is held in a police lockup or detention center. Conversely, when charges are filed without the suspect being detained, it is called indictment without detention, and although the trial proceeds under the same procedures regardless of detention status, there is a significant difference in the defendant's physical freedom, exercise of the right to defense, and the impact on sentencing. Because detention is an exceptional compulsory measure intended to facilitate the smooth progress of investigation and trial and to prevent flight and destruction of evidence, the law imposes strict requirements and time limits on it.

Main Content

Concept and Legal Nature

Under the Criminal Procedure Act, indictment with detention denotes a state in which the compulsory measure of "detention" and the litigation act of "filing of charges" are combined. Detention itself does not signify a guilty verdict, and Article 27(4) of the Constitution stipulates that "a criminal defendant shall be presumed innocent until a guilty verdict is confirmed." Accordingly, indictment with detention is at most a provisional physical confinement for the purpose of trial, not the execution of a final sentence.

Requirements for Detention

Article 201 of the Criminal Procedure Act provides that a suspect may be detained when there is probable cause to suspect that the suspect committed a crime and there is a risk of the suspect not having a fixed residence, fleeing, or destroying evidence. However, in principle, detention is not permitted unless the offense falls under a certain level of penalty (a crime punishable by death, life imprisonment, or imprisonment with or without labor for a maximum term of three years or more). A court determines whether to issue a detention warrant after a warrant substantiveness review (pre-detention examination of the suspect), which since its introduction in 1997 has functioned as a safeguard for the suspect's right to defense.

Detention Period and Procedure

The detention period is divided into the investigation stage and the trial stage. When police arrest a suspect, they must apply for a detention warrant within 48 hours; a prosecutor may investigate while the suspect is detained for up to 20 days—10 days from the date the detention warrant is issued, plus a 10-day extension with court permission. The method of aggregating the detention period at the police stage and the period after transfer to the prosecution has also been a practical issue. A prosecutor must file charges within this period, and if it is exceeded, the suspect must be released. In principle, the detention period at the trial stage after charges are filed is six months for the first instance and three months each for the second and third instances (Article 92 of the Criminal Procedure Act), subject to the provision limiting renewal (Article 92-2).

Review of Propriety of Detention and Bail

A detained suspect may request a review of the propriety of detention (Article 214-2 of the Criminal Procedure Act) in order to contest the legality of the detention warrant and the necessity of detention. In addition, a defendant indicted with detention may request bail (Article 94 et seq.), and the court decides whether to grant bail by considering the assurance of the defendant's appearance, the possibility of evidence destruction, and the protection of victims. If bail is granted, the defendant is released on conditions such as payment of a bail bond and stands trial while not in custody. However, bail is restricted for certain serious crimes such as murder.

Difference Between Indictment with Detention and Indictment Without Detention

A defendant indicted without detention can maintain daily life and occupational activities even during trial, making it relatively easier to exercise the right to defense. On the other hand, a defendant indicted with detention faces constraints on meetings with counsel and evidence collection due to confinement in a detention center, along with social stigma and increased burden regarding the possibility of a prison sentence. In practice, when it is judged that there is no risk of flight or evidence destruction, the "principle of investigation and trial without detention"—under which indictment without detention is the default—is emphasized.

Practical Issues

The most frequently noted problem is prolonged detention. As the 20 days of the investigation stage and the period of the trial stage accumulate, cases arise in which a defendant indicted with detention is confined for a considerable period until the first-instance verdict is pronounced. This leads to concerns about the presumption of innocence and the guarantee of the right to defense. In addition, the practice of detention being perceived in effect as a signal of a guilty verdict, disparities in bail grant rates, and problems regarding the right to defense in warrant substantiveness reviews continue to be discussed.

Recent Trends

In 2024–2025, as large-scale cases in the political and economic spheres followed one after another, indictment with detention emerged as a social topic. Representatively, in January 2025, an unprecedented situation occurred in which a president accused of being the ringleader of insurrection was indicted with detention, and the court subsequently issued a decision to cancel the detention and release him. In this process, the method of calculating the detention period, the legality of the warrant review, and the allocation of authority between the Corruption Investigation Office for High-ranking Officials and the prosecution became the biggest issues.

Legislative discussions also became active. Amendments to the Criminal Procedure Act and the Prosecutors' Offices Act concerning the scope of prosecutors' direct investigations and limits on investigation periods were pursued, and measures to clarify the upper limit of the detention period and strengthen the procedure for reviewing the legality of arrest and detention were discussed in the National Assembly. In addition, voices argued that the investigation periods of prosecutors and police should be aggregated to prevent prolonged detention, while others argued that bail grants should be expanded. Another new trend is that, as artificial intelligence and digital evidence analysis technologies are introduced into investigations, the criteria for judging the necessity of detention are becoming more sophisticated based on data. Ultimately, institutional improvements to the indictment with detention system continue in the direction of finding a balance between the right to defense of suspects and defendants and the effectiveness of investigation.